As Legal Onslaught Begins, EPA Tells States How to Buy Time on Climate Rule

As expected, the publication of the final Clean Power Plan in the Federal Register on Friday brought on a swarm of lawsuits from opponents of the U.S. EPA rule.

On Friday morning, West Virginia Attorney General Patrick Morrisey and Texas Attorney General Ken Paxton jointly announced a 24-state lawsuit challenging EPA's rule. Later that day, Oklahoma Attorney General Scott Pruitt and North Dakota Attorney General Wayne Stenehjem announced their states are also challenging the rule, meaning that over half of U.S. states are opposing the Clean Power Plan in court.
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In addition to the states, a number of industry groups also announced Friday they are challenging the Clean Power Plan in court, including the U.S. Chamber of Commerce, National Rural Electric Cooperative Association and National Association of Manufacturers.  The Clean Power Plan also saw opposition in Congress shortly after it was formally published -- on Friday, Senate Majority Leader Mitch McConnell (R-Ky.) said he and Sen. Joe Manchin (D-W.Va.) will file a resolution of disapproval under the Congressional Review Act this week designed to halt implementation of the rule.

EPA, the White House and their supporters on Friday expressed confidence that the Clean Power Plan will carry the day in court.

"The Clean Power Plan is grounded firmly in science and the law," EPA Administrator Gina McCarthy wrote in a blog post Friday.

EPA offers guidance on 'simple' process for state extensions:

In addition to rebuffing claims that the Clean Power Plan is legally vulnerable, EPA leaders and staff are busying themselves helping states figure out how to implement the regulation.

As part of that effort, the agency released a memorandum last week to regional EPA directors on what states must include in their initial submittal with the agency next September if they want an extension to submit a final state plan in 2018.

Many, if not most, states are expected to file for an extension, acting EPA air chief Janet McCabe said at a conference of air regulators in Washington, D.C., last week.  McCabe stressed that this process would not be onerous.

In the memorandum, EPA stressed that for a state to get an extension, the "process is simple and requires only that the state demonstrate it has taken certain preliminary and readily achievable steps towards the development of its plan."

It notes what must be included in the extension request, to be filed on Sept. 6, 2016:  a description of the compliance approaches the state is considering, an explanation for why the state needs more time to submit a final plan and a description of how the state has reached out to interested parties for input.

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